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The Problem of Constitutional Law Reform in New Zealand: a Comparative Analysis

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The Problem of Constitutional Law Reform in New Zealand: a Comparative Analysis The Problem of Constitutional Law Reform in New Zealand: A Comparative Analysis Rachael Jones A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wananga o Otago October 2013 i To my supervisor, Andrew Geddis, for being generous with his time, snappy with his comments, and charitable with his patience. To the Faculty of Law, Mark Henaghan, Rex Ahdar and Melanie Black in particular, for being forthcoming with the alternative arrangements. To the permanent residents of Room 9N12, for treats, coffee and encouragement at crunch time. And lastly to Mum, Sue Jones, for her support and understanding, and for turning the dining room into a library for the better half of 2013. ii Table of Contents I. Introduction ........................................................................................................... 2 II. The Comparative Exercise .................................................................................... 5 A. The New Zealand Experience ...................................................................................... 5 1. New Zealand’s constitution ....................................................................................... 5 2. Does New Zealand have an approach to constitutional reform? ............................... 8 3. Examples of constitutional reform in New Zealand .................................................. 9 5. Conclusion ............................................................................................................... 16 B. The Canadian Experience .......................................................................................... 16 1. The Constitution of Canada ..................................................................................... 16 2. Examples of constitutional reform in Canada ......................................................... 18 3. Conclusion ............................................................................................................... 24 C. The United Kingdom Experience ............................................................................... 24 1. The constitution of the United Kingdom ................................................................. 24 2. Examples of constitutional reform in the United Kingdom .................................... 27 3. Conclusion ............................................................................................................... 32 III. Lessons Learned: Formulation of Criteria for Effective Constitutional Change ........................................................................................................................ 33 A. The need for criteria – what makes constitutional reform ‘effective’? .................... 33 1. A flexible definition of ‘constitutional’ ................................................................... 35 2. Cross-party support .................................................................................................. 38 3. Consultation, education and participation ............................................................... 40 4. Approval – the question of referenda ...................................................................... 43 B. Implementing the criteria ........................................................................................... 45 C. Conclusion .................................................................................................................. 45 IV. The Current Constitutional Review ................................................................... 47 A. Origins of the Review ................................................................................................. 47 1. 2008 General Election ............................................................................................. 47 2. Announcement of the review ................................................................................... 47 iii B. The Constitutional Advisory Panel ............................................................................ 48 1. The CAP itself ......................................................................................................... 49 2. Terms of reference ................................................................................................... 50 3. Engagement strategy ................................................................................................ 51 C. The Outcome of the Process ...................................................................................... 52 D. Conclusion .................................................................................................................. 52 V. Conclusion: the Future of Constitutional Change in New Zealand ................ 54 VI. Bibliography ......................................................................................................... 57 iv I. Introduction In most other countries, an utterance of the word ‘constitution’ by those in government would undoubtedly incite public interest and debate, especially where reform is proposed. In New Zealand, however, the attitude towards anything remotely ‘constitutional’ (other than the Treaty of Waitangi, perhaps) is met with indifference and a general willingness to pass the buck and leave the big questions untouched. The Kiwi reaction seems perplexing, especially given the inherent significance of a constitution and its impact on “our economy, our society, our culture and our politics.”1 However, the root of the problem, if indeed it is a problem, is twofold: there is a general lack of knowledge about constitutional matters in New Zealand and, where there is knowledge, there is a general disinterest in constitutional matters and preparedness to leave these matters to Parliament. As such, constitutional change can occur ‘overnight’ without debate and we may not know, or care about such changes.2 Rather than saying we don’t care because we don’t know, this paper analyses the fact that we don’t care or know as part of a larger problem – the lack of clarity and certainty surrounding the process of constitutional law reform in New Zealand. In light of this problem, this dissertation seeks to achieve four things. The first is to conduct a comparative analysis of past approaches to constitutional change between New Zealand, Canada and the United Kingdom. The second is to develop normative principles and/or criteria for ‘effective’ constitutional change based on this analysis, and propose how they would be implemented. The third is to measure New Zealand’s current review of constitutional arrangements against these criteria, and the fourth is to conclude what the future of constitutional change in New Zealand may look like if these principles were to be implemented in the absence of a defined and prescriptive process. In this dissertation I acknowledge that due to the nature of New Zealand’s constitution, ‘constitutional change’ can occur in many different ways. As such, I 1 Geoffrey Palmer and Matthew Palmer Bridled Power: New Zealand’s Constitution and 2 Matthew Palmer “What is New Zealand’s constitution and who interprets it? Constitutional realism and the importance of public office-holders” (2006) 17 PLR 133 at 133. 2 intend to focus my attention on the type of constitutional change brought about by considered decisions made by the New Zealand public or by directly elected representatives on their behalf. This is because my dissertation is set in the context of an ongoing constitutional review brought about by a confidence and supply agreement between the National and Maori parties after the 2008 general election. The review is being undertaken by the Constitutional Advisory Panel whose terms of reference do not, and effectively cannot, consider the impact of the judiciary on the constitution3 as an independent branch of government. For this reason, a comprehensive study of the judiciary and how it affects the constitution is outside the scope of my research. As Fisher J in Berkett v Tauranga District Court4 stated: “the Courts themselves have always chosen to regard themselves as bound by such Acts [of Parliament] and until any written constitution to the contrary they can be relied upon to do so in the future.”5 This position will inform any discussion of the judiciary’s relationship to the constitution, which will be touched upon where it is appropriate to do so. Furthermore, this dissertation acknowledges that the Treaty of Waitangi is a founding constitutional document for New Zealand,6 but will discuss its position in New Zealand’s constitution only where necessary. An in-depth analysis of this aspect of New Zealand constitutional law would require an entire dissertation dedicated to the subject, and is probably best left to Matthew Palmer.7 In terms of structure, in Part II I will tackle the comparative exercise between Canada, the United Kingdom and New Zealand, which will inform the development of criteria for effective constitutional change in Part III. Part IV will describe the current constitutional review in New Zealand, its origins, terms of reference and especially its methodology for carrying out the review. 3 Except in the question of whether New Zealand should adopt a written constitution, whereby the judiciary would (probably) be accorded the responsibility of enforcing the constitution as supreme law by striking down any legislation inconsistent with the constitution. 4 Berkett v Tauranga District Court [1992]
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